ITC claim of invoice from 2017-18 after September 2018

Section 16 of Central Goods and Service Tax Act, 2017 ("the CGST Act, 2017") specify certain conditions to claim input tax credit against any inward supply one of which is the last date to claim ITC against any taxable invoice.

Subsection 4 of section 16 of the CGST Act, 2017 states that last date for claiming input tax credit against any taxable invoice or debit note is earliest of due date of return filed under section 39 [GSTR -3] or the date of furnishing annual return (31st December). Now, literal interpretation of the said provision is that Input tax credit against any tax invoice pertaining to FY 17-18 can be claimed up to the last date of filing GSTR -3 of September month of FY 18-19 or annual return of FY 17 -18 whichever is earlier.

Relevant extract of section is reproduced here for quick reference;

(4) A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or invoice relating to such debit note pertains or furnishing of the relevant annual return, whichever is earlier.

However, what twist the simple provision in present scenario is the deferment of return in form GSTR – 3 by Noti the cation No. 58/2017 – Central Tax dated November 15th, 2017 and till date no due date is been notified by the government.

As the last date to claim ITC against invoice pertaining to FY 17-18 is earliest of;

• Due date of GSTR - 3 of September 2018
• Date of furnishing of annual return of FY 2017-18; and in absence of due date of GSTR - 3 it could be argued that input tax credit can be availed even after the month of September but before the date of filing of annual return.

Also, one contradictory view could also be taken here that in absence of GSTR - 3 due dates of return in Form GSTR-3B shall be considered for the purpose of last date. However, said view is not legally correct as GSTR-3B is not a substitute of GSTR - 3, same is substantiated by taking reference from below mentioned rules of Central Goods and services Rules, 2017 ("the CGST Rules")

Rule 61(5) of the CGST Rules states that whenever the last date of filing GSTR -1 and  GSTR -2 shall be extended in such circumstances return shall be furnished in FORM GSTR-3B.

Further, through Notification no. 17/2017 dated July 27th, 2017 the word “return in Form GSTR -3B is lieu to Form GSTR-3 may be furnished in such manner and subject to such conditions as may be notified by the commissioner” had been deleted by substituting 61(5) with new sub-rule 5 & 6 to rule 61.

Said rule is reproduced here for the quick reference of the reader ;

[(5) Where the time limit for furnishing of details in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 has been extended and the circumstances so warrant, the Commissioner may, by notification, [specify the manner and conditions subject to which the] 38 return shall be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner.

From the detailed analysis of section 16(4) of CGST Act read with rule 61(5) of CGST Rules, it can be concluded that return in FORM GSTR 3B is not a supplement of return under FORM GSTR -3.

Thus ITC of invoice pertaining to FY 17-18 can even be claimed after the month of September and can be claimed upto the notified due date of GSTR – 3 of FY 18-19 or the annual return of FY 17-18 whichever is earlier.

Further, one more thing which should be read simultaneously with section 16(4) is the language of section 34 ("Credit note and debit note") wherein, it is stated that details of credit note can, at last, be furnished  in return for the month of September following the end of Financial year or annual return whichever is earlier i.e. no any specific reference of section 37 (GSTR -1)  or 39 (GSTR -3)   is provided in section 34. But, the same is provided in section 16(4).

Meaning thereby, the law has made some distinction between the two provisions. However, the benefit of both the provision will result a decrease in output tax liability of the taxpayer.

Hence, till the time the due date for the filing of the GSTR-3 is being not prescribed than  ITC of invoice pertaining to FY 17-18 can even be claimed after the month of September and can be claimed upto the notified due date of GSTR – 3 of FY 18-19 or annual return of FY 17-18 whichever is earlier and the same shall not be in contrary to the provision of CGST Act, 2017